In an important decision issued today, the Sixth Circuit held that the operators of www.TheDirty.com could not be held liable for postings by third parties on the website. The decision reversed the decision of the Eastern District of Kentucky, which had allowed the plaintiff's claims to proceed, despite the website's arguments that the claims were barred by the Communications Decency Act (CDA).
Plaintiff Sarah Jones – a high school teacher and member of the cheerleading squad for the Cincinnati Bengals – was the subject of several unwelcome anonymous posts on www.TheDirty.com a website that the court defined as "a user-generated tabloid primarily targeting non-public figures." In response to these posts, Jones brought an action against the website operators alleging state tort claims of defamation, libel per se, false light and intentional infliction of emotional distress. The website operators argued that Section 230 of the CDA barred these claims.
The District Court held that the website operators were not entitled to immunity under the CDA because they had intentionally encouraged illegal or actionable third-party postings and added comments ratifying or adopting the posts. Accordingly, it allowed the case to proceed to a jury – twice – ultimately resulting in a verdict in favor of Jones for $38,000 in compensatory damages and $300,000 in punitive damages. This decision was widely seen as a departure from most CDA precedent which recognizes broad federal immunity to protect website operators for displaying content created by third-parties.
The only issue on appeal is whether CDA – which provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" – barred the plaintiff's claims against the website operators.
The Sixth Circuit held that the District Court had erred in finding that the website operators were the "creators" or "developers" of the content at issue and also erred in adopting an "encouragement test of immunity under the CDA."
Instead, the Sixth Circuit adopted the material contribution test adopted by other circuits to determine whether a website operator is "responsible, in whole or in part, for the creation or development of [allegedly tortious] information." Under this test, the court considers whether the website operator is "responsible for what makes the displayed content allegedly unlawful."
Addressing the District Court's finding that the website operators had encouraged the unlawful content, the Sixth Circuit stated:
[M]any websites not only allow but also actively invite and encourage users to post particular types of content. Some of this content will be unwelcome to others – e.g. unfavorable reviews of consumer products and services, allegations of price gouging, complaints of fraud on consumers, reports of bed bugs, collections of cease-and-desist notices relating to online speech. And much of this content is commented upon by the website operators who make the forum available. Indeed, much of it is "adopted" by website operators, gathered into reports, and republished online.
Under the test adopted by the District Court, these websites would lose their immunity under the CDA and be subject to lawsuits aimed at the publisher or third-party poster of the content. The court further noted that it would be particularly challenging to determine what constitutes "encouragement" under these circumstances, reasoning that "Congress envisioned an uninhibited, robust, and wide-open internet, but the muddiness of an encouragement rule would cloud that vision."
Applying the "material contribution" test to the facts before it, the Sixth Circuit noted that:
- The defendants did not author the statements at issue, even though they selected the statements for publication.
- Failing to remove the defamatory content could not be found to materially contribute to the content. The CDA expressly bars "lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions – such as deciding whether to publish, withdraw, postpone or alter content."
- The website operators did not require users to post illegal or actionable content as a condition of use.
- The name of the website does not suggest that only illegal or actionable content will be published.
- The website operators did not compensate users for the submission of unlawful content.
- the website's content submission tools were neutral in both orientation and design as to what third parties submit.
- The editorial comments, which the court characterized as "absurd" and "ludicrous," were posted after the allegedly defamatory postings and therefore "it would break the concepts of responsibility and material contribution to hold [the website operator] responsible for the defamatory content of speech because the website operators later commented on that speech.
- The plaintiff had not alleged that the editorial comments themselves were defamatory.
Thus, the Sixth Circuit held that the CDA bars the plaintiff's claims against the operators of www.TheDirty.com, vacating the judgment in favor of the plaintiff and reversing the denial of the defendants' motion for judgment as a matter of law.
This decision is a major victory for website operators, repairing what many had viewed as a crack in the shield of CDA immunity.